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ABA Urges Senators to Bar Justice Department, Other Agencies,
From Pressuring Organizations to Waive Legal Protections
In a written statement submitted this week to the Senate Judiciary Committee, the association reiterated its position, previously outlined in its June 2007 letter to committee leaders, opposing government policies that erode those protections and supporting corrective legislation.
The McNulty Memorandum, issued last December to replace the Department’s previous cooperation standards outlined in the Thompson Memorandum, “falls far short of what is needed to prevent further erosion of fundamental attorney-client privilege, work product and employee legal protections,” according to the association.
The waiver provisions contained in the McNulty Memorandum also are causing “profoundly negative consequences,” according to the
Additionally, the policies undermine constitutional and other legal protections for employees, such as the Sixth Amendment right to effective assistance of counsel and the Fifth Amendment right against self-incrimination, and they are inconsistent with the fundamental legal principle that all prospective defendants are presumed to be innocent. They allow federal prosecutors to preempt companies from making independent decisions about whether to provide a legal defense to their employees, decisions that ought not to be made by the government, according to the association statement. And they allow government lawyers to interfere with employees’ access to the information that they need to properly defend themselves.
The association testimony is available at http://www.abanet.org/poladv/priorities/privilegewaiver/20070918_mcnulty.pdf.
With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the